United States District Court, S.D. New York
February 25, 2004.
GEORGE CHAPKINES, Plaintiff, -against- NEW YORK UNIVERSITY, ET AL., Defendants
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff George Chapkines ("Chapkines"), proceeding pro se,
brings this action against New York University's School of Continuing and
Professional Studies ("NYU"), David F. Finney ("Finney"), Dean, Perry
Greene ("Greene"), Associate Dean, Mary Silver ("Silver"), Director,
Maxine Gerson ("Gerson"), Associate Director, Katherine Hyde ("Hyde"),
Assistant Director, Cynthia Negron ("Negron"), Program Coordinator, Jean
McMahon ("McMahon"), Administrative Assistant, Jane Doe Number 1 and Jane
Doe Number 2 (collectively "defendants").*fn1 Plaintiff alleges that the
defendants discriminated against him unlawfully when they terminated his
employment because of his age, in violation of the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.,
the New York Human Rights Law
("NYHRL"), N.Y. Exec. Law § 296(6), and the New York City
Human Rights Law ("NYCHRL"), New York City Administrative Code §
Before the Court is the defendants' motion to dismiss, made pursuant to
Fed.R.Civ.P. 12(b)(6). The defendants urge that all claims asserted by
the plaintiff against the individual defendants be dismissed for failure
to state a claim upon which relief may be granted.*fn2 Additionally, the
defendants seek dismissal of plaintiff's claims for liquidated damages,
punitive damages and attorney's fees. Plaintiff opposes the motion; it is
Chapkines was employed by NYU as an adjunct professor from October 1979
until December 2000. During this period, a total of 43 semesters,
Chapkines taught a variety of business and accounting courses. Chapkines
contends that, while he was employed at NYU, his performance ratings as a
teacher always ranged from "very good" to "excellent," and that teaching
evaluations submitted by his students invariably included many favorable
On December 4, 2000, Chapkines was told by Hyde that his employment had
been terminated because he had received poor student evaluations.
Chapkines asserts that, after speaking with Hyde, he requested and
received copies of the evaluations in question. Chapkines discovered that
the evaluations showed that he had received positive ratings overall,
specifically, a cumulative score of 4.73 out of a possible 5.
Thereafter, according to Chapkines, he was given a different
explanation for the decision to terminate his employment and was told
that "student evaluations [were] not the issue." Specifically, Chapkines
was told that the reasons for his termination were: (i) two students had
complained about a remark made by Chapkines during class which was
characterized by NYU as "inappropriate behavior of a sexual nature," (ii)
he had refused to cooperate with administrative policies and procedures,
that is, he had refused to complete a "Form I-9," which was required by
the Immigration Reform and Control Act of 1986, (iii) he had displayed
rude behavior toward NYU staff, and (iv) he was inaccessible, that is,
difficult to reach by telephone because he had no answering machine or
Allegation of Inappropriate Behavior
Chapkines states that the incident which allegedly prompted complaints
of "inappropriate behavior of a sexual nature" occurred at the beginning
of the first session of a class Chapkines taught in the Fall 2000
semester. According to Chapkines, in the opening minutes of the class, he
wrote his name and his home and school telephone numbers on the chalk
board so that the students could contact him during the coming weeks if
they had questions concerning their homework. Chapkines states that he
then said, jokingly, "but this number is just for the girls in the
class," and, a moment later, added "just kidding." Chapkines avers that
the students laughed and that the remark was a "simple attempt at humor
to get the students relaxed  on the first day of class."
Chapkines states that Hyde later informed him that two students had
complained about his remark and had dropped the course. Chapkines claims
that he has no recollection of any student dropping the course and that
Hyde refused to provide him with the names of the students
in question, citing confidentiality. Chapkines contends that in an
NYU position statement, dated June 20, 2001, Hyde stated that "[t]he
University's decision [to terminate plaintiff's employment] was based
upon Mr. Chapkines' breach of the University's sexual harassment policies
and procedures."*fn3 In the same statement, Chapkines avers, Negron
stated that she "[considered] such behavior to be a violation of the
University's sexual harassment policy."
Allegation of Refusal to Cooperate
Plaintiff states that, on May 8, 2000, he went to the midtown campus of
NYU and asked to speak to Silver. Plaintiff avers that he told Silver
that the purpose of his visit was to submit a Form I-9 and that he gave
her his United States passport, whereupon she copied what she required
and returned the passport to him. Chapkines maintains that she then
attached the supporting documents to the signed and dated Form I-9 that
he had given her.
According to Chapkines, Hyde, Negron and counsel for the defendants all
stated in NYU's position statement of June 20, 2001, that Chapkines had
refused to complete a Form I-9. Chapkines asserts that these are
"outright misstatements" and that his Form I-9 had been submitted 13
months earlier, in May 2000. Chapkines asserts that Silver was aware that
he had submitted the form previously, yet failed to speak out and clarify
the situation, thus lending "legitimacy" to the erroneous statements made
by Hyde, Negron and counsel for the defendants.
In addition, Chapkines asserts that Gerson also was aware that he
had submitted the Form 1-9 in May 2000 and also had failed to "disclose"
Allegation of Rude Behavior
Chapkines states that during a telephone conversation with McMahon
during April 2000, he inquired about the necessity of filling out a
Form 1-9. Chapkines states that McMahon's characterization of his comments
during the conversation as "abusive" and "rude" is inaccurate and that,
in any case, his conduct during a single telephone conversation was not
indicative of a general pattern of behavior. Chapkines avers that,
although he was told that his termination was based in part on his
rudeness to the administration staff, he had been unfailingly polite and
cooperative in all of his dealings with the administration during the 20
years of his employment at NYU.
Allegation of Inaccessibility
According to Chapkines, Hyde claimed she had difficulty reaching him
because he never answered his telephone and was the only member of her
faculty staff who did not have an answering device. Chapkines maintains
that if he had been told by NYU that he was expected to have an answering
machine or to subscribe to an answering service, he would have complied
with such a directive. Chapkines claims that Negron identified
inaccessibility as one reason for NYU's decision not to reappoint
Chapkines to the faculty.
Chapkines contends that, in the NYU position statement of June 2001,
Negron stated that she had been consulted by Silver and Hyde concerning
whether to invite Chapkines back to the university for the spring
semester of 2001 and, in response, had stated that "[b]ased on his
inappropriate behavior towards the female students, his refusal to
cooperate with administrative
policies and procedures, his rude behavior towards staff, and his
inaccessiblity which is crucial to administering a part-time program, I
recommended his nonreappointment." According to Chapkines, the decision
to terminate his employment was made by Silver and Hyde.
Chapkines states that he went to a faculty gathering in February 2001,
where he met Finney and informed him of the circumstances surrounding his
termination. Chapkines states that he later wrote to Finney, and that
Finney promised to contact him within a couple of weeks. According to
Chapkines, he then received a letter from Greene, on March 27, 2001,
which stated: "This . . . is in response to a letter of concern that
you recently sent to Dean Finney regarding your not being re-appointed to
the spring, 2001, semester. I have reviewed the issues that you raise in
your letter and, after careful consideration, find that the decision of
the department is within appropriate bounds. . . ." Plaintiff
subsequently received a letter from Finney stating: "I find that I must
support the decision of the department and Associate Dean Perry Greene."
Chapkines asserts that the reasons given by the defendants for
terminating his employment are all "pretextual" and that his termination
was discriminatory, based on his age. Chapkines states that evidence of
discrimination may be found in the fact that, although he received
positive performance evaluations, and 92% of the students who were asked
whether they would take another course with him had responded in the
affirmative, he had been replaced as a faculty member by a younger
person. In support of his complaint, Chapkines submitted, inter
alia, copies of letters of recommendation from several former
Chapkines' second amended complaint was filed on April 29, 2003,
pursuant to the ADEA and state and municipal anti-discrimination
laws.*fn4 At the time that he filed his second amended complaint,
Chapkines, who was born on March 8, 1931, was 72 years old.
Chapkines seeks actual damages for loss of wages, benefits and
promotional opportunities, including front pay for loss of future salary
and benefits, double his actual damages as liquidated damages, punitive
damages in an amount not less than $50,000, and costs and attorney's
Standard of Review for Motion to Dismiss
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only
if "it appears beyond doubt that [a] plaintiff can prove no set of facts
in support of his claim which will entitle him to relief." Woodford
v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 526
(2d Cir. 2001)(quoting Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 102 ). In considering the motion, the court must take
"as true the facts alleged in the complaint and draw  all reasonable
inferences in the plaintiff's favor." Jackson Nat'l Life Ins, v.
Merrill Lynch & Co., 32 F.3d 697, 700 (2d Cir. 1994).
Furthermore, the court may consider all papers and exhibits appended to
the complaint as well as any matters of which judicial notice may be
taken. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085,
1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc.,
987 F.2d 142, 150 (2d Cir. 1993). Additionally, when a plaintiff is
proceeding pro se, courts are to construe the complaint
liberally. See, e.g., Boddie v. Schnieder, 105 F.3d 857, 860
(2d Cir. 1997). "A complaint should not be dismissed simply because a
plaintiff is unlikely to succeed on the merits." Baker v.
Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).
The defendants seek dismissal of Chapkines' second amended complaint,
pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that: (1) the
individual named defendants may not be sued under the ADEA, (2) the
second amended complaint fails to state a basis for individual liability
under state and municipal law, (3) plaintiff has not alleged any willful
violation of the ADEA and, therefore, is not entitled to liquidated
damages, (4) plaintiff is not entitled to punitive damages, and (5)
plaintiff, who is proceeding pro se, is not entitled to
attorney's fees. An analysis of the defendants' claims follows.
Individual Defendants' Liability Under the ADEA
There is no individual liability under the ADEA. See, e.g., Cooper
v. Morgenthau, No. 99 Civ. 11946, 2001 WL 868003, at *4 (S.D.N.Y.
July 31, 2001)(citing Tomka v. Seiler Corp., 66 F.3d 1295,
1313-1314 [2d Cir. 1995]; Boise v. Boufford, 127 F. Supp.2d 467,
472 [S.D.N.Y. 2001]); Grasso v. Chase Manhattan Bank, No.
01 Civ. 4371, 2002 WL 575667, at *3 (S.D.N.Y. April 17, 2003)(same).
Therefore, Chapkines' discrimination claims brought pursuant to the ADEA
cannot be maintained against the individual NYU employees named as
defendants in this action. See Cooper, 2001 WL 868003, at *4;
Grasso, 2002 WL 575667, at *3. Accordingly, the claims against
individual defendants Finney, Greene, Silver, Gerson, Hyde, Negron,
McMahon and Jane Doe Number 1, alleging discrimination on the basis of
age under the ADEA, should be dismissed.
Individual Defendants' Liability Under NYHRL and NYCHRL
Plaintiff brings individual liability claims against the defendants
under the NYHRL and the NYCHRL. Section 296(6) of the NYHRL states that
"[i]t shall be an unlawful discriminatory practice for any person to aid,
abet, incite, compel or coerce the doing of any of the acts forbidden
under this article, or to attempt to do so." N.Y. Exec. Law § 296(6).
The Second Circuit Court of Appeals has held that, under the "aiding and
abetting" language of § 296(6), "a defendant who actually
participates in the conduct giving rise to a discrimination claim may be
held personally liable under the [NY]HRL." King v. Town of
Wallkill No. 02 Civ. 8817, 2004 WL 291560, at *10-11 (S.D.N.Y. Feb.
13, 2004)(quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 [2d
Cir. 1995])(internal quotation marks omitted). Although New York state
courts have reached divergent conclusions concerning this issue, the
majority of the federal district courts in New York that have considered
the matter have adopted the Second Circuit's interpretation of New York
law and, thus, have applied the rule of "actual participation" to hold
individual defendants personally liable for discriminatory conduct under
§ 296(6). See id.; see also Mills v. George R. Funaro &
Co., No. 99 Civ. 4816, 2001 WL 50893, at *8 (S.D.N.Y. Jan. 19,
2001); Ahmed v. Compass Group, No. 99 Civ. 10032, 2000 WL
1072299, at *5 (S.D.NY. Aug. 3, 2000); Arena v. Agip USA Inc.,
No. 95 Civ. 1529, 2000 WL 264312, at *3-4 (S.D.N.Y. Mar. 8, 2000). The
NYCHRL also provides that individuals may be held liable for their acts
of employment discrimination. See Arena, 2000 WL 264312, at *3.
A review of the record in this case reveals that plaintiff has alleged
specific facts showing the actual participation of Greene, Finney,
Negron, Silver and Hyde in the conduct that gave rise to his claim of
employment discrimination. Greene participated in the alleged adverse
employment action by signing and sending a letter to plaintiff
stating that he found the decision to terminate plaintiff's employment to
be "within appropriate bounds." Finney engaged in the alleged adverse
action by signing and sending a letter to plaintiff stating that he
supported Greene's decision. Negron participated in such action by
recommending that plaintiff not be reappointed. Finally, Silver and Hyde
actually terminated plaintiff's employment. See King, 2004 WL
291560, at *12 (finding that the record revealed evidence of active
participation of all named individual defendants and denying motion for
summary judgment dismissing NYHRL claims against them); Mills,
2001 WL 50893, at *8 (finding that individual defendant alleged to have
personally committed acts of sexual discrimination could be held
personally liable under the NYHRL); Ahmed, 2000 WL 1072299, at
*5 (denying a motion to dismiss NYHRL claims against individual
defendants); Arena, 2000 WL 264312, at *4 (denying motion for
summary judgment on plaintiff's NYHRL and NYCHRL claims because a
reasonable jury could conclude that individual defendant participated in
disability harassment). Accordingly, the defendants' motion to dismiss
plaintiff's NYHRL and NYCHRL claims against Greene, Finney, Negron,
Silver and Hyde should be denied.
As to individual defendants Gerson, McMahon and Jane Doe Number 1, the
Court finds that plaintiff has not presented sufficient evidence to
establish that these individual defendants participated in the conduct
that led to his alleged discriminatory discharge. Accordingly, the
defendants' motion to dismiss plaintiff's NYHRL and NYCHRL claims against
Gerson, McMahon and Jane Doe Number 1 should be granted.
The ADEA permits recovery of liquidated damages, in an amount equal to
plaintiff's award for back pay and benefits, where the plaintiff has
demonstrated that the violation of the statute was "willful."
See 29 U.S.C. § 626(b); Vernon v. Port Authority of
New York and New Jersey, No. 95 Civ. 4594, 2003 WL 1563219, at *12
(S.D.N.Y. Mar. 26, 2003); Collings v. Industrial Acoustics Co.,
Inc., No. 99 Civ. 11875, 2001 WL 913909, at *5 (S.D.N.Y. Aug. 13,
2001). "The Supreme Court has defined a `willful' violation as one in
which `the employer either knew or showed reckless disregard for the
matter of whether its conduct was prohibited by the statute.'"
Scully v. Summers, No. 95 Civ. 9091, 2000 WL 1234588, at *19
(S.D.N.Y. Aug. 30, 2000)(quoting Hazen Paper Co. v. Biggins,
507 U.S. 604, 617, 113 S.Ct. 1701, 1710 ).
In his second amended complaint, plaintiff alleges that the defendants'
wrongful decision to discharge him because of his age was both willful
and intentional. However, plaintiff has not provided evidence to support
this assertion. For example, plaintiff has not adduced evidence of
instances in which the defendants exhibited an awareness of the ADEA and
its prohibition against using age as a factor in taking an adverse
employment action. Thus, although it has not been shown that plaintiff
can prove no set of facts in support of his claim of age-based
discrimination which will entitle him to relief, in the absence of any
evidence that the defendants' alleged violation of the statute was either
knowing or reckless, plaintiff's claim for liquidated damages is without
merit. See Scully, 2000 WL 1234588, at * 19-20 (finding that
defendant's violation of the ADEA was neither knowing nor reckless but,
at most, negligent); cf. Collings, 2001 WL 913909, at *5-6
(finding that sufficient evidence of willful violation was
presented where plaintiff pointed to, inter alia,
testimony of defendant showing an awareness of the ADEA's prohibition
against age-based discrimination). Accordingly, the defendants' claim
that plaintiff is not entitled to liquidated damages should be granted.
The ADEA does not provide for punitive damages. See, e.g.,
Boise v. New York University, No. 00 Civ. 7844, 2003 WL 22390792, at
*3 (S.D.N.Y. Oct. 21, 2003)(citing Hatter v. Fulton, 1997 WL
411623 at *6 [S.D.N.Y. 1997], aff'd, 165 F.3d 14 [2d Cir.
1998]). Similarly, punitive damages may not be recovered under the NYHRL.
See Farias v. Instructional Systems, Inc., 259 F.3d 91, 101 (2d
Cir. 2001). However, a prevailing plaintiff may recover punitive damages
in a discrimination case under the NYCHRL. See id The federal
standard for imposing punitive damages in a discrimination case, namely,
that such damages are appropriate where "the employer has engaged in
intentional discrimination and has done so with malice or with reckless
indifference to the federally protected rights of an aggrieved
individual," also applies to claims for punitive damages under New York
law. Id. at 101-02 (quoting Kolstad v. American Dental
Ass'n, 527 U.S. 526, 529-30, 119 S.Ct. 2118, 2122 )(internal
quotation marks omitted). Under both standards, an award of punitive
damages requires a showing that "a defendant not only intentionally
discriminate[d] but [did] so in the face of a perceived risk that these
actions are prohibited by law." Id. at 102 (quoting
Greenbaum v. Svenska Handelsbanken, N.Y., 67 F. Supp.2d 228,
262 [S.D.N.Y. 1999]).
In this case, for reasons similar to those set forth in connection with
plaintiff's liquidated damages claim, plaintiff has not met the relevant
standard for imposing punitive damages. Plaintiff has not alleged any
specific facts or provided any evidence that would tend to show that
the defendants discriminated against him with malice or a reckless
indifference to his federally protected rights, or with an awareness that
age-based discrimination is a violation of federal law. Accordingly, the
defendants' claim that plaintiff has failed to support a request for
punitive damages should be granted.
A pro se plaintiff is not allowed to recover attorney's fees
for representing himself. See Hawkins v. 1115 Legal Service
Care, 163 F.3d 684, 694 (2d Cir. 1998)(citing Kay v.
Ehrler, 499 U.S. 432, 435-38, 111 S.Ct. 1435, 1436-1438 ). In
this case, the plaintiff is proceeding pro se; consequently, he
is not entitled to attorney's fees. Accordingly, the defendants' request
that the court strike this demand should be granted.
For the reasons set forth above, the Court recommends that the motion
to dismiss the complaint be granted in part and denied in part. The
motion to dismiss the complaint should be denied with respect to the
defendants' claim concerning the personal liability of individual
defendants Greene, Finney, Negron, Silver and Hyde: these individuals may
be held personally liable for discriminatory conduct under the NYHRL. The
defendants' claim that the individual defendants are not personally
liable under the ADEA should be granted. Additionally, the defendants'
claim that individual defendants Gerson, McMahon and Jane Doe Number 1
are not personally liable under the NYHRL also should be granted.
Finally, the defendants' claims that plaintiff is not entitled to: (a)
liquidated damages, (b) punitive damages, or (c) attorney's fees should
V. FILING OF OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days from
service of this Report to file written objections. See also Fed.R. Civ.
P. 6. Such objections, and any responses to objections, shall be filed
with the Clerk of Court, with courtesy copies delivered to the chambers
of the Honorable Richard J. Holwell, 500 Pearl Street, Room 1950, New
York, New York, 10007, and to the chambers of the undersigned, 40 Foley
Square, Room 540, New York, New York, 10007. Any requests for an
extension of time for filing objections must be directed to Judge
Holwell. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas
v. Arn 474 U.S. 140
(1985); IUE AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049
, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298
, 300 (2d Cir. 1992); Wesolek v. Canadair
Ltd., 838 F.2d 55
, 57-59 (2d Cir. 1988); McCarthy v.
Manson, 714 F.2d 234
, 237-38 (2d Cir. 1983).